Neil Garnham QC and Neil Sheldon of 1 Crown Office Row represented the Secretary of State in these proceedings. They had nothing to do with the writing of this post.
This was an application by the widow of Alexander Litvinenko for judicial review of the refusal by the Secretary of State for the Home Department to order the setting up of a statutory inquiry into his death in London in November 2006. The Secretary of State had been asked to set up such an inquiry by Sir Robert Owen, the judge appointed to conduct the inquest into Mr Litvinenko’s death as Assistant Coroner.
Factual and Legal Background
Mr Litvinenko was taken ill on 1 November 2006 and died in University College Hospital on 23 November. There appears to be no doubt that the cause of death was radiation poisoning as a result of the ingestion of a radioactive substance, polonium 210. An “extremely thorough” investigation into the death was carried out by the Metropolitan Police Service with the assistance of the Atomic Weapons Establishment, Public Health England, the Health and Safety Executive, the Forensic Science Service and other external experts. The police investigation led to the conclusion that the fatal dose of polonium 210 was probably consumed by Mr Litvinenko on 1 November 2006 when he was in the company of Mr Andrey Lugovoy and Mr Dmitry Kovtun at a hotel in London, but the Russian government has not yet agreed to the extradition of these two individuals to face charges in this country.
In the run up to the inquest into Mr Litvinenko’s death, a copious amount of documentation was disclosed to the Coroner, including material from numerous British Government departments and agencies which was provided subject to such claims for public interest immunity (“PII”) as might be made in due course. The assessment of counsel to the inquest was that this HMG material established a prima facie case as to the culpability of the Russian State in the death of Mr Litvinenko but it did not establish a prima facie case as to the culpability of the British State in failing to take reasonable steps to protect Mr Litvinenko from a real and immediate risk to his life (described as the “Osman” issue, in reference to the principles laid down in Osman v United Kingdom (2000) 29 EHRR 245).
In January 2013, the Foreign Secretary claimed PII in respect of the HMG documentation (see our post on the FCO’s successful appeal against an order for disclosure). Since there is no mechanism for any kind of closed hearings in an inquest, the effect of upholding the claim for PII was that the material in question fell to be excluded from further consideration during the inquest process. The Coroner observed that the inevitable consequence of the decision to uphold the PII claim was that the issue of preventability would have to be withdrawn from scope of the inquest, and in consequence his duty to carry out a full, fair and fearless investigation into the death would “be compromised to that extent”. He went on to point out that a statutory inquiry under section 1(1) of the 2005 Inquiries Act might where appropriate hear evidence in closed session and would enable the relevant material to be taken into account. On 4 June 2013, the Coroner wrote to the Lord Chancellor on 4 June 2013 to request that a statutory inquiry be set up. The letter contained the following statement:
I should say that I regard investigation of the ‘preventability’ and ‘Russian State responsibility’ issues as being of central importance to this case. It is a highly exceptional situation when the victim of what appears to have been a murder is interviewed by police before he dies, and makes a public statement in which he names those whom he suspects of being responsible for his death, and an independent analysis by counsel of relevant material suggests that it establishes a prima facie case to the same effect, but where the operation of PII serves to exclude that material from evidence in the resulting inquest. In my view, any investigation of this death which excludes a proper analysis of the HMG material will be inadequate and accordingly I request that the only statutory mechanism by which they may be examined should now be deployed.
The response by the Secretary stating his refusal to set up the statutory inquiry was the decision under challenge in this application.
In December 2013 the Coroner issued a ruling that the issues of Russian state responsibility and the Osman issues should be withdrawn from scope of the inquest. He described the preventability issue as “an issue of the highest importance, involving as it does the possible culpability of the British State for the death of Alexander Litvinenko” (paragraph 21 of his ruling) but concluded that, following the PII decision, he was not in a position to investigate the issue because of the lack of relevant open evidence. He said that the issue of Russian state responsibility remained “of central importance”, raising the question whether agents or institutions of the Russian state deliberately murdered Mr Litvinenko in London, “which has extremely grave implications” and demanded the most thorough investigation of all the available evidence (paragraph 25).
At the pre-inquest review hearing on 29 November the Coroner indicated his intention that if no statutory inquiry was established the inquest should commence in or about May 2014. He stressed, however, that his intention to continue with preparation for the inquest should not be construed in any sense as an observation as to the validity of the present challenge to the decision to refuse his request of 4 June 2013 for a statutory inquiry.
The decision under challenge
There were six factors relied upon by the Secretary of State in her decision letter refusing to proceed with a statutory inquiry.
- An ordinary inquest would go “a substantial way” to addressing or allaying public concern about this incident.
- There was at the time “no basis” to conclude that Article 2 of the ECHR was engaged in this case, and the Coroner had acknowledged this.
- The Coroner’s obligation in circumstances where the ECHR is not engaged is to ascertain who the deceased was, and how, when and where he came by his death; ‘how’ in this context means ‘by what means’ and not ‘in what broad circumstances’. In addition, an inquest (just like an inquiry) cannot determine civil or criminal liability.
- The reasons which led to a PII order being made for the inquest would lead to a similar restriction order being made in a statutory inquiry. The result would be that an inquiry would reveal publicly only that which the inquest would reveal publicly.
- The effect of acceding to the request for a statutory inquiry would be that the consideration of closed material, which can never be revealed publicly, would delay the publication of conclusions that can be drawn from the open material. It would also be costly of time, money and resources than an inquest.
- International relations were a factor in this response. An inquest managed and run by an independent coroner would be “more readily explainable to some of our foreign partners”, and the integrity of the process more readily grasped, than an inquiry, established by the Government, under a Chairman appointed by the Government which has the power to see Government material, potentially relevant to their interests, in secret.
The claimant challenged these reasons on a number of fronts.
- There was a strong and overwhelming public interest in establishing whether the murder of Mr Litvinenko was (a) an ordinary crime committed for private criminal purposes by two individuals or (b) a state-sponsored assassination of a British citizen carried out on British territory on the orders of the Russian state. The public interest in determining which is correct lies at the heart of the case.
- The British Government is in possession of evidence that establishes a prima facie case that the murder was committed on the orders of officials of the Russian state.
- In the light of the PII claim in respect of that material, a statutory inquiry under the 2005 Act would be the only means by which the central issue in (1) could be investigated and determined whilst upholding both the public interest in getting at the truth and the public interest in protecting the secrecy of the material
The six reasons given by the Secretary of State in the decision letter for refusing to set up an inquiry do not stand up to independent scrutiny, whether together or individually. Standing back, the decision was so obviously contrary to the public interest as to be irrational.
The Court’s decision
Richards LJ, giving the judgement of the Court, upheld the claimant’s challenge to the adequacy or correctness of the first, third and fourth of the reasons given by the Secretary of State for refusing the Coroner’s request to set up a statutory inquiry. He also had “concerns” about the fifth and sixth reasons though they are of subsidiary importance for the claim.
The issue of the preventability of Mr Litvenko’s death – the UK’s responsibility – had lost much of its significance in the light of the public disclosure of the Coroner’s view that the HMG material did not establish even a prima facie case of breach of the Osman duty. So the central question was the Russian state responsibility. So the first reason for refusing a statutory inquiry – that an inquest would go a long way to addressing public concern – simply overlooked the most important public interest issue in the case, which could not be properly canvassed because of the PII claim. “The Coroner’s strongly expressed provisional conclusion was that the Russian state responsibility issue and preventability issue should be removed from scope.”
It was not correct to say that there was no Article 2 argument left in the case. The Strasbourg admissibility case of Menson (2003) 37 EHRR established that where there is a suspicious death in the United Kingdom without any blame on the part of the authorities or any breach of their Osman duty, there is still a procedural obligation under Article 2. Nevertheless, it was the Court’s view that the steps that had been taken were “amply sufficient” to fulfil the Menson duty in relation to the death of Mr Litvinenko.
An exceptionally detailed police investigation has led to the identification of two named suspects and to the making of all reasonable efforts to bring them to trial. It is common ground that the duty is one of means not result, so that the failure to secure their extradition despite those efforts is not a ground of objection. The state’s capacity to enforce the criminal law so far as it reasonably can against those who unlawfully take the life of another has been demonstrated.
The third reason given by the Secretary of State was based on a misunderstanding of the law: that the Coroner in this case had chosen to exercise his discretion as to the scope of the inquest so as to include within scope two issues, including the Russian state responsibility issue, that he was not obliged to include. This was not the case: once the Coroner had formed the judgment that the Russian state responsibility should be investigated, he was obliged to investigate it. It was not open to the Secretary of State to treat the Russian state responsibility issue as something that the Coroner was not obliged to investigate. The Coroner had been prevented by PII from considering an issue that in his judgment required investigation and was indeed of central importance to the case. He requested the setting up of a statutory inquiry as a means of overcoming that problem, and he had been right to do so.
The challenge was also upheld in respect to the fourth reason, that a statutory inquiry would reveal no more than the inquest. Of course, a statutory inquiry would have to consider the HMG material in closed session and would be precluded from disclosing it; but the chairman of the inquiry would almost certainly be able to state publicly some useful conclusion based on the material without disclosing the material itself.
As for the fifth factor, expense, once it was recognised that the inquest could not deal with the Russian state responsibility issue and could not therefore meet those ends, cost could not be a good reason for refusing an inquiry; and in any event the additional cost of turning the inquest into a statutory inquiry so as to include the Russian state responsibility issue within it could not be a strong factor in the overall decision.
Nor did the sixth “foreign relations” reason stand up to scrutiny. Richards LJ found the Secretary of State’s reasoning difficult to accept,
especially in the absence of any evidence from the Foreign and Commonwealth Office to support the professed difficulty of explaining to the United Kingdom’s foreign partners the concept of an independent statutory inquiry chaired by a judge.
Taken together, the reasons given by the Secretary of State did not provide a rational basis for the decision not to set up a statutory inquiry at this time but to adopt a “wait and see” approach. The deficiencies in the reasons were so substantial that the decision could stand. On the other hand, his Lordship would not go so far as to accept counsel for the claimant’s submission that the Secretary of State’s refusal to set up an inquiry was so obviously contrary to the public interest as to be irrational, that is to say that the only course reasonably open to her would be to accede to the Coroner’s request.
If she is to maintain her refusal she will need better reasons than those given in the decision letter, so as to provide a rational basis for her decision. But her discretion under section 1(1) of the 2005 Act is a very broad one and the question of an inquiry is, as Mr Garnham submitted, difficult and nuanced. I do not think that this court is in a position to say that the Secretary of State has no rational option but to set up a statutory inquiry now.
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